Maryam Samani

The court found that Empire Steel Inc. breached its sublease with AZZ Galvanizing Canada Limited by overcharging for hydro, contrary to the contractual requirement to pass on only the actual cost of utilities.

Empire’s attempt to justify the overcharges by reference to alternative agreements and a retroactive TMI reconciliation was rejected as lacking credibility and good faith.

The court awarded AZZ $418,876 for hydro overcharges, subject to a $20,000 set-off for outdoor storage, and dismissed all other counterclaims and crossclaims.

The decision addresses a motion by the defendant, S&P Data Corporation, to compel answers to four questions refused by the plaintiff’s affiant, Allison Drennan, during cross-examination on affidavits filed in a summary judgment motion.

The court reviews the proper scope of cross-examination on affidavits, the relevance of the questions, and the production of the CECRA application.

The court orders the plaintiff to answer the refused questions and to produce a redacted copy of the CECRA application, finding the information relevant to the issues of good faith and the merits of the action.

The defendant brought an oral motion to bar proceedings initiated by the City of Hamilton, arguing they were outside the limitation period set by s.36(8) of the Building Code Act, 1992.

The alleged offence involved construction without a permit, observed in 2021, with proceedings commenced in early 2023.

The court granted the motion, finding the proceedings were indeed barred by the limitation period, applying the "discovery" rule as interpreted in recent case law, and dismissing the "continuing offence" argument as a distraction.